1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-12-1996

Burkett v. Love

Precedential or Non-Precedential:

Docket 95-3525

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Recommended Citation

"Burkett v. Love" (1996). 1996 Decisions. Paper 99.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/99
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ____________ 

 No. 95-3525 

 ____________ 

 WAYNE PAUL BURKETT, 

 Appellant 

 v. 

 WILLIAM LOVE, Superintendent, et al., 

 Answering Respondent BLAIR COUNTY DISTRICT 

 ATTORNEY, 

 Appellees 

 ____________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

 (D.C. No. 88-cv-01397) 

 ____________ 

 Argued April 30, 1996 

 Before: STAPLETON, SCIRICA, and WEIS, Circuit Judges 

 Filed July 12, l996 

 ____________ 

Shelley Stark, Esquire (ARGUED) 

Federal Public Defender 

Karen Sirianni Gerlach, Esquire 

Assistant Federal Public Defender 

415 Convention Tower 

960 Penn Avenue 

Pittsburgh, PA 15222 

Attorneys for Appellant 

David C. Gorman, Esquire (ARGUED) 

Office of the District Attorney 

 for Blair County 

413 Allegheny Street 

Hollidaysburg, PA 16648 

Attorney for Appellees 

 ____________ 
 OPINION OF THE COURT 

 ____________ 

WEIS, Circuit Judge. 

 In this case, a state prisoner alleges that he was 

denied parole in retaliation for the successful pursuit of relief 

in various federal habeas corpus proceedings. The district court 

denied the petition on the merits and also found a failure to 

exhaust "administrative" remedies. Because we conclude that 

petitioner has failed to exhaust state remedies, and in addition, 

that some uncertainty exists as to the proper state procedure to 

address the issue that the prisoner raises, we remand with 

directions to dismiss. 

 Between February 1981 and April 1982, the district 

attorney of Blair County, Pennsylvania, filed three sets of 

charges against petitioner Wayne Burkett. In November 1981, he 

was convicted of burglary, theft, receiving stolen property, and 

corruption of minors, docketed in 1981 at Nos. 140/141. On 

January 20, 1982, Burkett was convicted of rape, involuntary 

deviate sexual intercourse, terroristic threats, unlawful 

restraint, indecent exposure, reckless endangerment, indecent 

assault, and aggravated assault, docketed in 1981 at No. 161. A 

third conviction, entered on January 28, 1983 for attempted rape, 

terroristic threats, assault, and reckless endangerment was 

docketed in 1982 at No. 284. 

 In an earlier proceeding, we granted habeas corpus 

relief resulting in the vacation of the convictions at Nos. 

140/141 and 161 because of inordinate delays in sentencing. SeeBurkett v. 

Cunningham, 826 F.2d 1208 (3d Cir. 1987). In Burkett 

v. Fulcomer, 951 F.2d 1431 (3d Cir. 1991), we held that the 

sentence imposed at No. 284 should be reduced because of delay. 

 After another round of orders from the district court 

and this Court, the state judge denied Burkett's motion for 

recusal and reduced the sentence in accordance with our earlier 

order. Petitioner is presently serving a term of 12-3/4 to 28- 

3/4 years. In February 1993, Burkett filed a Post Conviction 

Relief Act petition in Blair County challenging the sentence as 

excessive. 

 In September 1994, the Pennsylvania Parole Board denied 

petitioner's request for parole, citing, among other reasons, 

"very high assaultive behavior potential" and "unfavorable 

recommendation from district attorney and sentencing judge." 

 The Board rejected petitioner's request for 

reconsideration, stating: "Be advised that what the Board 

decides and why, with regard to parole/reparole, is wholly within 

the Board's discretion and not subject to judicial review. 

Reider v. Pennsylvania Board of Probation and Parole, 514 A.2d 

967 (1986) (en banc)." 

 On September 28, 1994, Burkett filed a pro se habeas 

corpus petition in the Pennsylvania courts raising, among other 

claims, retaliatory denial of parole. The state court dismissed 

the petition without prejudice and appointed new counsel with 

instructions to file an amended petition. 
 In June 1995, Burkett initiated the present matter by 

filing a document in the district court entitled "Motion to 

Enforce Order of the District Court Dated December 4, 1992 and to 

Permit Discovery in Support of Burkett's Motion." (The December 

4, 1992 order had directed the imposition of a reduced sentence, 

as discussed in our opinion at 951 F.2d 1433.) In this "motion," 

Burkett alleged that the Commonwealth of Pennsylvania had denied 

him parole in vindictive retaliation for his success in the 

earlier federal habeas corpus actions he had pressed in the 

district court and our Court. 

 The district court denied the motion, finding interalia that the 

decision to grant parole was committed to the sound

discretion of the Parole Board and that the agency had cited at 

least five legitimate and non-discriminatory reasons for its 

action. Further, the court stated that the responses of the 

district attorney and the sentencing judge were proper and nonvindictive. In addition, the court concluded that Burkett had 

failed to exhaust his administrative remedies. 

 Burkett has appealed, contending that no corrective 

state process exists and therefore the district court should have 

conducted an evidentiary hearing and allowed discovery. 

 I. 

 Appellate Jurisdiction 

 Burkett's motion in the district court was filed under 

the docket number of an earlier case. It should have been filed 

under a separate docket number rather than as a continuation of 

the previous action. However, because the district court and the 

parties have treated this case as a new petition for a writ of 

habeas corpus, we will do likewise. The district court's order 

disposing of the matter is final as a practical matter and we 

have jurisdiction to consider this appeal. 

 II. 

 Exhaustion of State Remedies 

 State prisoners alleging a constitutional violation and 

improper incarceration must present their arguments to the state 

courts before they will be addressed by the federal courts. 28 

U.S.C.  2254(b). At the time the "motion" was filed in the 

district court, 28 U.S.C.  2254(c) read: "An applicant shall 

not be deemed to have exhausted the remedies available in the 

courts of the State . . . if he has the right under the law of 

the State to raise, by any available procedure, the questions 

presented." 

 To satisfy the exhaustion requirement, the claim must 

be presented to the state's highest court. Rose v. Lundy, 455 

U.S. 509, 515 (1982). "The exhaustion requirement does not 

foreclose, but only postpones, federal relief." Toulson v. 

Beyer, 987 F.2d 984, 986 (3d Cir. 1993). Pursuing state remedies 

is not a mere formality, but serves the interests of comity 

between the state and federal courts. Gibson v. Scheidemantel, 

805 F.2d 135, 138 (3d Cir. 1986). 

 After this appeal was taken, Congress enacted the 

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 

No. 104-132, 110 Stat. 1214 (April 24, 1996), which revises the 
procedures for habeas corpus proceedings. Section 104(1) of the 

Act states that applications by persons in state custody "shall 

not be granted unless it appears that . . . the applicant has 

exhausted the remedies available in the court of the State" or 

there is no available state remedy or that process would be 

ineffective. However, a federal court may deny an application on 

the merits notwithstanding an applicant's failure to exhaust 

state remedies. Id. 

 The 1996 statute also provides that if a state court 

has addressed the merits of a petitioner's claim, the federal 

court shall not grant a writ of habeas corpus unless the state 

decision was contrary to, or an unreasonable application of, 

federal law, or was based on an unreasonable determination of the 

facts in light of the evidence presented in the state proceeding. 

Section 104(3). Applicants have the burden to rebut a state's 

factual determinations by clear and convincing evidence. Section 

104(4). Section 104(4) also specifies the limited circumstances 

in which a federal court can hold an evidentiary hearing if the 

applicant has failed to develop the factual basis for a claim in 

the state proceeding. In the somewhat unusual circumstances 

here, we need not digress to determine the effect of these 

provisions on this pending action, filed, as it was, before the 

amendments were enacted. 

 III. 

 Does the State Lack Corrective Measures? 

 Burkett contends that retaliation for his exercise of 

access to the federal courts violates his rights under the United 

States Constitution, but that the state courts will not entertain 

his claim. He points to the Pennsylvania Commonwealth Court's in 

banc decision in Reider v. Pennsylvania Bd. of Probation and 

Parole, 514 A.2d 967 (Pa. Commw. Ct. 1986). 

 In that case, a state prisoner appealed to the 

Commonwealth Court alleging that the Parole Board's decision to 

deny him parole was a denial of his constitutional rights to 

equal protection as well as due process, and in addition 

constituted cruel and unusual punishment. In an opinion 

dismissing the appeal, the Court reviewed a number of its earlier 

rulings that had reached differing results on its power to review 

Parole Board decisions asserted to have been in violation of the 

Constitution. 

 Because the Court's jurisdiction to review agency 

decisions rests on the administrative agency law of Pennsylvania, 

2 Pa. Cons. Stat. Ann.  701-704, which authorizes appeals from 

"adjudications," Reider looked to the statutory definition of 

that word. The term "adjudication" excludes "any order based 

upon a proceeding . . . which involves . . . paroles." 2 Pa. 

Con. Stat. Ann.  101. The Commonwealth Court concluded that 

"[b]y definition, therefore, Board action of denying parole is 

not an adjudication subject to judicial review." Reider, 514 

A.2d. at 970. 

 The Reider opinion acknowledged that the Pennsylvania 

Supreme Court in Bronson v. Pennsylvania Bd. of Probation and 

Parole, 421 A.2d 1021 (Pa. 1980) had held that a prisoner could 

seek judicial review of a parole revocation. In distinguishing 
Bronson, the Commonwealth Court cited Greenholtz v. Inmates of 

Nebraska Penal & Correctional Complex, 442 U.S. 1 (1979), which 

concluded that a parole revocation affected a liberty interest 

because the ruling returned a parolee to custody. In contrast, a 

prisoner denied parole is not at liberty but remains in custody 

and thus his status remains unchanged. 

 Following that reasoning, Reider held that under 

Pennsylvania law, a prisoner had "no constitutionally protected 

liberty interest in the expectation of being [paroled]." 514 

A.2d at 971. "The mere possibility of parole affords no 

constitutional rights to prisoners." Id. (emphasis in original). 

The Court, therefore, held that a denial of parole may not be 

judicially reviewed in Pennsylvania. A dissenting Commonwealth 

Court judge pointed out that carrying his Court's holding to its 

logical extreme would allow the Board to refuse parole solely on 

the basis of a prisoner's race, religion, gender, or ethnic 

background without any relief from the judiciary. Id. at 972. 

 Later panel opinions of the Commonwealth Court seem to 

indicate that it is having second thoughts about the scope of the 

Reider holding. Thus, in Murgerson v. Pennsylvania Bd. of 

Probation and Parole, 579 A.2d 1335, 1336 n.2 (Pa. Commw. Ct. 

1990), the Court commented that because the imposition of 

conditions is a part of the parole decision, "consistent with the 

rationale in Reider we hold that the imposition of such 

conditions is not subject to judicial review absent an allegation 

that the condition violates a prisoner's constitutional rights." 

(emphasis added). See also McCaskill v. Pennsylvania Bd. of 

Probation and Parole, 631 A.2d 1092, 1094 n.2 (Pa. Commw. Ct. 

1993) (judicial review of Parole Board's order includes 

determination of whether constitutional rights were violated, 

citing 2 Pa. Cons. Stat. Ann.  704). 

 Other cases, however, are consistent with Reider. SeeShaw v. 

Pennsylvania Bd. of Probation and Parole, 671 A.2d 290, 

292 (Pa. Commw. Ct. 1996) (allegations of due process and equal 

protection violations do not establish "liberty interest" and 

claims unreviewable); King v. Pennsylvania Bd. of Probation and 

Parole, 534 A.2d 150, 151 (Pa. Commw. Ct. 1987) (retaliatory 

denial not reviewable); Johnson v. Pennsylvania Bd. of Probation 

and Parole, 532 A.2d 50, 52 (Pa. Commw. Ct. 1987) (due process 

contention not reviewable). 

 Reider was correct in its conclusion that no liberty 

interest is created by the expectation of parole. SeeGreenholtz, 442 U.S. 

at 11. But Reider is seriously flawed 

because it fails to recognize that the curtailment of a liberty 

interest is not the only way that the Constitution may be 

violated. 

 The Supreme Court held in Perry v. Sindermann, 408 U.S. 

593, 597 (1972), that although a person may have no "right" to a 

valuable government benefit, and may be denied it for any number 

of reasons, "there are some reasons upon which the government may 

not rely." We applied that principle in Block v. Potter, 631 

F.2d 233, 236 (3d Cir. 1980), where we explained "[a]lthough 

Greenholtz indicates that a state may . . . deny it completely, a 

state statute may not sanction totally arbitrary parole decisions 
founded on impermissible criteria." Moreover, "[a] legislative 

grant of discretion does not amount to a license for arbitrary 

behavior." Id. 

 In Block, the Parole Board used race as one of the 

bases for denying parole. The panel majority concluded that in 

so doing, the agency violated substantive due process in 

grounding its action on "constitutionally impermissible reasons." 

Id. at 236. The panel also concluded that the denial of parole 

violated the prisoner's right to equal protection. "The equal 

protection clause forbids government bodies from making decisions 

on the basis of race, even if other factors were also 

considered." Id. at 241. 

 The dissenting judge in Block disagreed with the 

majority's finding of a liberty interest and declined to read 

Greenholtz as applicable to both substantive as well as 

procedural due process. However, the dissent concurred with the 

majority's position on equal protection and said that a 

discretionary parole system "does not give the state the 

unfettered right to deny parole on arbitrary and impermissible 

grounds." Id. at 244. 

 Cases in other Courts of Appeals have been in agreement 

with Block's premise. See Candelaria v. Griffin, 641 F.2d 868, 

870 (10th Cir. 1981) (denial of parole because prisoner was 

Hispanic states claim for violation of equal protection); Osborne 

v. Folmar, 735 F.2d 1316, 1317 (11th Cir. 1984) (prisoner may 

challenge parole decisions on equal protection grounds even 

though he fails to establish due process claim). 

 Case law has also established that a state may not bar 

parole in retaliation for a prisoner's exercise of his 

constitutional rights. See Shabazz v. Askins, 980 F.2d 1333 

(10th Cir. 1992) (retaliation for a prisoner's religious 

discrimination suits against prison officials); Clark v. Georgia 

Pardons and Paroles Board, 915 F.2d 636, 639 (11th Cir. 1990) 

(retaliation for filing suit against prison officials for 

wrongful death of prisoner's brother). See also Cain v. Lane, 

857 F.2d 1139, 1145 (7th Cir. 1988) (retaliation for exercise of 

First Amendment rights). 

 Several Courts of Appeals have addressed analogous 

retaliation claims in the prison setting, although not involving 

parole decisions. Adams v. James, 784 F.2d 1077, 1080 (11th Cir. 

1986), noted that the "unconstitutional conditions" doctrine 

applies in prisoner section 1983 cases. Accord Woods v. Edwards, 

51 F.3d 577, 580 (5th Cir. 1995) ("It is settled that prison 

officials cannot act against a prisoner for availing himself of 

the courts and attempting to defend his constitutional rights"). 

 In Burton v. Livingston, 791 F.2d 97 (8th Cir. 1986), 

the complaint alleged threats made by a prison guard in 

retaliation for testimony given by the inmate in another case. 

These facts supported a section 1983 claim for violation of the 

prisoner's "due-process and First Amendment right of access to 

the federal courts." Id. at 100. Accord Newsom v. Norris, 888 

F.2d 371, 375 (6th Cir. 1989). 

 Similarly, Burkett's claim that he was denied release 

on parole based on the exercise of his right of access to the 
courts alleges an impermissible and unconstitutional reason for 

the Board's action. That claim is not based on the abrogation of 

a liberty interest, and consequently, is not within the ambit of 

the reasoning underlying the decision in Reider. It is at least 

arguable, therefore, that Burkett's claim is not controlled by 

Reider. However, the application of that case to other instances 

of constitutional violations shows that the Commonwealth Court 

has given the holding a broad sweep. 

 It is important, therefore, to assess the attitude of 

the state's highest court. In discussing the right of appeal in 

parole cases, the Pennsylvania Supreme Court in Bronson explained 

that the state's constitution guarantees the right to an appeal 

from an administrative agency (including the Pennsylvania Parole 

Board) to a court. 421 A.2d at 1024-25. Implementing 

legislation designated the Commonwealth Court as the appropriate 

court of record for agency review. 42 Pa. Cons. Stat. Ann. 

763. Bronson concluded that the Commonwealth Court had 

jurisdiction over the appeal from a parole revocation decision 

made by the Board. 421 A.2d at 1025-26. In its opinion, the 

state Supreme Court did not indicate in any way that Commonwealth 

Court would lack jurisdiction if the controversy had centered on 

denial, rather than revocation, of parole. 

 As we read Bronson, therefore, it is reasonable to 

assume that the Commonwealth Court has jurisdiction over appeals 

from a denial of parole based on constitutional grounds other 

than an alleged abrogation of a liberty interest. To that 

extent, we conclude that Reider does not state the law in 

Pennsylvania and that Burkett was entitled to appeal to the 

Commonwealth Court. 

 One other procedural avenue appears open to Burkett. 

Reider itself acknowledged that "mandamus is available to compel 

the Board to conduct a hearing or correct a mistake in applying 

the law." 514 A.2d at 972 n.4. In Commonwealth ex rel. 

Saltzburg v. Fulcomer, 555 A.2d 912 (Pa. Super. Ct. 1989), the 

Superior Court noted a distinction between an appeal from a 

"discretionary decision" of the Board and an action that seeks to 

compel the Board to act in accordance with its own regulations. 

In the latter circumstance, the Superior Court held that mandamus 

was the appropriate remedy and transferred an appeal from a Board 

ruling to the Commonwealth Court. Id. at 914. 

 We also consider whether Burkett may be able to proceed 

in the state courts under the Post Conviction Relief Act or by 

requesting a writ of habeas corpus. In 1988, Pennsylvania 

enacted the Post Conviction Relief Act. It provides "the sole 

means of obtaining collateral relief and encompasses all other 

common law and statutory remedies for the same purpose . . . 

including habeas corpus and coram nobis." 42 Pa. Cons. Stat. 

Ann.  9542. 

 In Commonwealth v. Hayes, 596 A.2d 195 (Pa. Super. Ct. 

1991), the Superior Court held that the language of the Post 

Conviction Relief Act precluded resort to the writ of coram 

nobis. No appellate court in Pennsylvania, to our knowledge, has 

considered the question of whether the Act has totally replaced 

the writ of habeas corpus. We note, however, that the 
Pennsylvania Constitution art. I,  14 provides that the writ of 

habeas corpus may not be suspended unless rebellion or public 

safety may require it. 

 The Post Conviction Relief Act, moreover, is limited to 

persons who assert they were convicted of crimes they did not 

commit and persons who are serving illegal sentences. 42 Pa. 

Cons. Stat. Ann.  9542. Petitioner here does not fall into 

either of those categories. Instead, he alleges that he is 

unjustly incarcerated because of an unconstitutional denial of 

parole. He does not deny commission of the crime, nor in this 

petition does he contend that the sentence is illegal. 

 The Pennsylvania Supreme Court has not yet addressed 

the effect of the Act on habeas corpus, and so we are required to 

predict what its ruling would be. Because of the state 

constitutional provisions prohibiting impairment of the right to 

a writ of habeas corpus, we would expect that in the event that 

the Commonwealth Court cannot adjudicate this matter, the state's 

highest court would permit a habeas corpus action in the 

circumstances present here. Alternatively, we predict that the 

state's highest court would conclude that the petition here is 

outside the scope of the Post Conviction Relief Act. 

 In Commonwealth v. Isabell, 467 A.2d 1287, 1291 (Pa. 

1983) (challenging Bureau of Corrections' interpretation of term 

of incarceration), the state Supreme Court held that where a 

prisoner did not mount a "direct or collateral attack on the 

conviction or sentence imposed by the trial court," the proper 

remedy was not under the Post Conviction Hearing Act (the 

predecessor statute), and "[c]onsequently, appellant may resort 

to the writ of habeas corpus ad subjiciendum." Id. Similarly, 

in Commonwealth v. Maute, 397 A.2d 826, 829 (Pa. Super. Ct. 

1979), the Superior Court held that "[a] claim for `cruel and 

unusual punishment' is more properly cognizable in a petition for 

habeas corpus" than under the Post Conviction Hearing Act. 

 Those two cases were decided before the Post Conviction 

Relief Act was enacted, but we believe the reasoning in those 

opinions is sound and applicable to the current statute. It 

follows that claims of unconstitutional violations not seeking to 

set aside a sentence or a conviction are outside the Post 

Conviction Relief Act. 

 We read Isabell, 467 A.2d at 1291, as permitting a 

petition for habeas corpus relief in the circumstances here 

because Burkett is not making a direct or collateral attack on 

his conviction or sentence. We recognize that in 1944, the 

Supreme Court of Pennsylvania held that a parole denial could not 

be challenged by using a petition for habeas corpus to allege 

that the Board had been neither fair nor impartial. SeeCommonwealth ex 

rel. Biglow v. Ashe, 35 A.2d 340 (Pa. 1944). 

There was no charge of unconstitutional action in that case and 

we need not resolve the conflict (if any) between it and Isabell. 

Fundamentally, it is the role of the Pennsylvania courts to 

clarify the law of that state. It is enough for our purposes to 

note that, should the Commonwealth Court not have jurisdiction, 

either by appeal or mandamus, relief by habeas corpus has not 

been foreclosed by holdings of the state Supreme Court. 
 It appears to us, therefore, that Burkett has available 

three potential ways of attacking the denial of parole in 

Pennsylvania courts -- appeal, mandamus, or habeas corpus. The 

somewhat unsettled state law in this area is a factor to consider 

in deciding whether we should proceed to the merits, rather than 

requiring Burkett to exhaust state remedies. Obviously, a ruling 

by the state Supreme Court or Commonwealth Court discussing the 

scope of the Reider opinion and the proper channels for bringing 

such claims would be helpful in this frequently litigated area of 

state law. 

 Clarification is highly desirable and counsels in favor 

of exhaustion of state remedies rather than resolution on the 

merits in the first instance by the district court. Failure to 

require resort to the state courts in these circumstances would 

not be consistent with a sound exercise of discretion. Moreover, 

we find some gaps in the record, such as the absence of the 

letters written to the Parole Board by the sentencing judge and 

the district attorney, that make us hesitant to address the 

merits of Burkett's petition at this stage. 

 We emphasize that our holding does not express any view 

as to the validity of Burkett's claim. We merely recognize that 

an allegation that parole was denied in retaliation for the 

successful exercise of the right of access to the courts states a 

cognizable claim for relief. 

 Pennsylvania law provides that the Parole Board "shall, 

in all cases, consider" recommendations from district attorneys 

and sentencing judges, 61 Pa. Cons. Stat. Ann.  331.19, while 

retaining "exclusive power to parole." 61 Pa. Cons. Stat. Ann. 

 331.17. The mere fact that recommendations were submitted to 

the Board is not enough, in itself, to establish Burkett's claim. 

He must show more. The determination of whether there was any 

retaliation, and whether that retaliation influenced the decision 

of the Parole Board, is a matter that must be addressed by the 

state courts. 

 Accordingly, we will remand this case to the district 

court with instructions to dismiss the petition so that Burkett 

may proceed in the state court. 

_________________________________ 

 

BURKETT v. LOVE, No. 95-3525 

STAPLETON, Circuit Judge, Concurring: 
 I concur in the judgment of the court. For the reasons 

stated by the court and the dissent in Reider, I predict that the 

Supreme Court of Pennsylvania would hold that the Commonwealth 

Court has jurisdiction to entertain Burkett's claim. I am unable 

to join the opinion of the court, however, because I think any 

other avenue to relief for Burkett is barred by authoritative 

precedent. As the court properly concludes, the Post Conviction 

Relief Act is not applicable. In addition, under current 

Pennsylvania law, Burkett cannot seek review of a parole denial 

in a state habeas corpus or mandamus proceeding.